This is part three of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.
Since signed into law by President Truman on May 5, 1950, Article 46 of the Uniform Code of Military Justice has provided that “the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”
Article 46 of the UCMJ was based on Article 22 of the Articles of War (1948) and Article 42(b) of the Articles for the Government of the Navy (1946), along with a 1947 proposal to modify the Navy rules. Those precursor rules (in their then-current and prior versions) addressed the procedural method to obtain witnesses to testify at trial, with the Article of War identifying the “Process to Obtain Witnesses,” and the Article for the Government of the Navy providing for “power to issue like process to compel witnesses to appear and testify.” During congressional hearings on the proposed Code, Assistant General Counsel for the Secretary of Defense Felix Larkin explained that Article 46 “go[es] a little further; but in essence it is the same as the provision now in effect” (link to testimony).
This history indicates that Article 46 was conceived more as a rule for process than a rule for discovery. But “military law has long been more liberal than its civilian counterpart in disclosing the government’s case to the accused and in granting discovery rights.” United States v. Killebrew, 9 M.J. 154, 159 (C.M.A. 1980). For instance, before enactment of the UCMJ, paragraph 45(b) of the 1949 Manual for Courts-Martial (link) provided:
Ample opportunity will be given the accused and his counsel to prepare the defense, including opportunities to interview each other and any other person.
Then, the 1951 Manual for Courts-Martial (prepared specifically to implement the UCMJ, according to its separate “Legal and Legislative Basis” pamphlet) included similar language in paragraph 42c (link):
Counsel may properly interview any witness or prospective witness for the opposing side in any case without the consent of opposing counsel or the accused.
The 1951 language remained in effect until the 1984 Manual, which was a major revision that created the modern Rules for Courts-Martial. Included in this revision was Rule for Courts-Martial 701, unequivocally stating procedures for “Discovery.” The 1984 version of Rule 701(e) (link) was:
(e) Access to witnesses and evidence. Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.
And this language is unchanged in the current (2012) version of the Manual. So, whatever the original intent of Article 46, the Manual has long guaranteed the right of the Defense to interview witnesses. In the decades since establishment of the Code, military courts have repeatedly used Article 46 and the Rules for Courts-Martial to strike down restrictions on Defense access to witnesses.
But Section 1704 of the NDAA changes Article 46, creating the first ever statutory limitation on the right of a military accused or his counsel to interview a particular type of witness.
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